From Can Innovation be Institutionalized? Problem-Solving in Mainstream Courts by Don Farole, Nora Puffett, Michael Rempel and Francine Byrne
As specialized problem-solving courts continue to proliferate throughout the U.S., interest has begun to surface in applying problem-solving court practices outside the specialized court setting. The question is: can the core principles and practices of problem-solving courts be productively applied throughout court systems?
In a 2004 study, Center for Court Innovation researchers partnered with the California Administrative Office of the Courts to conduct focus groups and interviews with judges in California in New York, two states at the forefront of testing new problem-solving court models. The research team worked with the California court system and the New York State Office of Court Drug Treatment Programs to identify judges with experience serving in both a problem-solving court and in conventional courtrooms. A total of 35 judges participated in the research.
Among the questions participants attempted to answer was: Which problem-solving principles and practices are more easily applied in conventional courts and which are less easily applied? Five principles and practices emerged as easiest and/or most appropriate to apply to general court calendars.
1. Problem-Solving Orientation of the Judge
Focus group participants generally agreed that the proactive role of the judge in problem-solving courts could be applied to other cases and calendars in various ways—asking more questions, seeking more information about each case, and exploring a greater range of possible solutions. The information gained might lead judges to craft highly individualized, unconventional court orders—one judge gave the example of mandating an offender to visit the morgue and write an essay on what he saw. The proactive, problem-solving orientation was deemed widely helpful outside of the problem-solving court setting, particularly in negotiation situations. Judges mentioned Matrimonial Court, Family Court, or other civil assignments as particularly appropriate venues. One judge claimed to have become known, after leaving a problem-solving court, for “thinking outside the box” in civil negotiations.
2. Direct Interaction with the Defendant/Litigant
Direct interaction with the defendant/litigant was deemed a prerequisite for effective behavior modification, enabling the judge to motivate individuals to make progress in treatment, bringing to light the most crucial needs of parties in civil cases, and laying the groundwork for positive solutions. Judges regarded this as one of the easiest practices to apply in conventional courts, perhaps because it requires no additional resources. While some expressed concern that, in criminal cases, defense attorneys would not allow such interactions for fear clients would incriminate themselves, several judges reported that they routinely address defendants directly, with few objections from the defense bar. Several judges drew attention to specific aspects of their interaction with defendants that were deemed to have value both inside and outside the problem-solving court context—treating defendants with respect, showing compassion, having faith in their ability to improve, and seeing them as potentially law-abiding citizens.
3. Ongoing Judicial Supervision
Requiring defendants, particularly probationers, to report back to court for treatment updates and judicial interaction was identified as one of the least controversial and most effective practices that could be applied in conventional criminal courts. Judges in all focus groups, however, expressed concern about the limited time available to devote to supervision in conventional courts. Time limitations may force judges to select only a subset of cases for supervision. And the lack of clinical staff means that judges often cannot obtain the kinds of thorough treatment reports that could better inform their interactions with defendants. Nonetheless, many judges acknowledged that they had instituted enhanced supervision in their conventional court with at least some cases.
4. Integration of Social Services
Many judges reported that service coordination was a valuable tool in any court—especially for litigants with addiction, mental illness, or vocational/educational needs. However, referring parties to treatment or other services was seen as more difficult in conventional courts, because they lack the additional staff/case management resources typically available in specialized problem-solving courts.
5. Team-Based, Non-Adversarial Approach
Judges discussed the extent to which they could adopt a team-based, non-adversarial approach in general court calendars. While there was less consensus and greater skepticism about this than other practices, judges identified opportunities to adopt such an approach, particularly in juvenile or family law settings, where rules often explicitly foster a problem-solving approach—seeking the “best interests of the child.” Most focus group participants believed the judge plays a critical role in determining the extent to which an individual courtroom can and will adopt a non-adversarial approach. However, most also stressed that others—particularly attorneys—can enable or derail that approach, and gaining the trust and participation of attorneys greatly facilitates judges’ ability to practice problem solving. It was generally agreed that the players tend not to act as a team until they develop trust, and that takes time.
As suggested above, focus group discussion extended to particular types of cases and calendars most ripe for problem-solving solutions. Appropriate case types were characterized in part as those in which a problem that can be resolved by court intervention and lack of services contributed to the defendant’s criminal behavior. Unsurprisingly, problems identified as appropriate included drug addiction, domestic violence, mental illness, DUI—all issues for which specialized problem-solving courts have been created. Criminal cases involving younger defendants were also cited.
Crimes of serious violence were virtually the only matters that a significant number of judges suggested as inappropriate for problem solving; yet it was also observed that violent offenses are staples of some problem-solving courts (primarily domestic violence but sometimes mental health courts as well). In fact, some judges conceded that if violence were tied to an underlying problem such as substance abuse, a problem-solving response might be appropriate.
Judges also identified specific stages in the criminal justice process—most notably bail and sentencing—as points at which problem solving was both appropriate and easy to implement. Although judges in several groups extended that to include plea negotiations, at least one judge objected on the grounds that plea bargaining is “a negotiation for what kind of punishment … they are going to receive, which is not a [problem-solving] court model and is probably inappropriate.”
Criminal trials were also generally seen as inappropriate for problem solving. In addition to criminal matters, other court calendars were also discussed extensively. Juvenile Delinquency and Dependency courts were widely cited as appropriate venues for problem solving, particularly for practices such as addressing the problems that contribute to recidivism, using a team-based approach, and interacting directly with all parties. In the California focus groups, Family Court—like juvenile courts—was perceived as inherently more problem-oriented, and as allowing greater flexibility and discretion than other courts. Judges in California also cited the Substance Abuse and Crime Prevention Act (commonly known as Proposition 36) Courts, which administer court-mandated treatment programs for a wide range of drug possession offenders, as particularly appropriate for problem-solving approaches.
Finally, probation—not a court calendar, but a court-imposed sentence—was widely regarded as an excellent vehicle for problem solving. Setting probation conditions, monitoring compliance, and responding to violations were all activities in which judges reported using problem-solving techniques.
